advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Saturday, July 2, 2016

suit for partition - not maintainable as earlier partition was taken place - memorandum of partition dated 12th August, 1958. - more than 30 years - un registered one -family arrangements among Muslims - Upon perusal of the evidence, we are of the view that the lower Appellate Court was correct in its conclusion that late Shaikaji had made arrangements with regard to his property during his lifetime and the said arrangements had been subsequently recorded in Ex.D7, which had been duly acted upon by the revenue authorities by dividing the suit property into two different parts namely, CTS No.883/A and CTS No.883/B. It is not in dispute that the property which had been divided by late Shaikaji was in occupation of the respective parties and the said fact has also been recorded in the revenue record. It is true that there is no concept of joint family in Muslims but it was open to late Shri Shaikaji to give his property to his children in a particular manner during his lifetime, which he rightly did, so as to avoid any dispute which could have arisen after his death. The arrangement so made was duly accepted by the family members and it was also acted upon. Only thereafter a formal record of the said fact was made by late Shaikaji in Ex. D.7. In our opinion, genuineness of Ex.D7 was rightly not questioned by the lower Appellate Court and the High Court was not correct when it questioned its legality and validity, especially when the plaintiffs had filed a suit after more than 25 years of the aforestated understanding, which had taken place during or prior to 1958.

                                                              NON-REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.7237 OF 2010



Smt. Ajambi ( Dead) by LR.        …….Appellant(s)

                 Versus

Roshanbi & Others                       ..….Respondent(s)





                               J U D G M E N T



ANIL R. DAVE, J.



1     This appeal has been filed against  the  judgment  delivered  on  16th
November, 2005 in R.S.A. No.578 of 2000 by the High Court  of  Karnataka  at
Bangalore.

2.    The facts giving rise to the present Appeal, in  a  nutshell,  are  as
under:

      The appellant is the original defendant in the Suit.  The  plaintiffs,
who are respondents herein, had filed a  Suit  for  partition  and  separate
possession of the 7/8th  share  in  the  Suit  property.   The  property  in
question originally belonged to late Shaikaji,  whose  first  wife  Halimabi
had died and thereafter he had married Roshanbi.  Out of the first  marriage
with Halimabi, late Shaikaji had two children  and  one  of  them  had  died
whereas he had six children through his second marriage with  Roshanbi.  The
Suit was filed by the second wife and her children  against  the  defendant,
who is the heir of the first wife.
3.   The Suit was in respect of  property
which was purchased by Shaikaji and the suit property was in  occupation  of
all the family members.

4.    The Suit, being O.S.No.153 of 1985 was decreed on 27th July, 1988.

5.    The said judgment and decree had been challenged by way of  an  appeal
and the said appeal was dismissed  on  13th  November,  1995  by  the  first
Appellate Court.  Being aggrieved by the said judgment, an appeal was  filed
in the High Court.  The High Court had allowed the appeal by  remanding  the
matter to the first Appellate Court for its fresh disposal with a  direction
to permit the  parties  to  lead  documentary  evidence  in  relation  to  a
memorandum of partition dated 12th August, 1958.

6.    In pursuance of the order of  the  High  Court,  the  first  Appellate
Court had permitted production of the aforestated document Ex.D7 dated  12th
August, 1958, which is in a nature of a memorandum  of  partition,  whereby,
during the lifetime of Shaikaji, the property in question had  been  divided
among the children of the first wife and the second wife.  In  pursuance  of
the aforestated document, necessary revenue entries were made,  whereby  the
property bearing CTS NO.883 was divided into CTS No.883/A and CTS  No.883/B.
 The aforestated facts are not in dispute and it is also  an  admitted  fact
that the eastern part of the property, CTS No.883/B, was  in  possession  of
the plaintiffs i.e. the  children  of  the  second  wife  as  well  as  late
Shaikaji, whereas the western part of the property,  CTS  No.883/A,  was  in
occupation of  the  son  of  the  first  wife.  The  first  Appellate  Court
considered the validity of the aforestated document dated 12th August,  1958
and came to the conclusion that  the  property  had  been  divided  earlier,
which was recorded under a document dated 12 August, 1958,  which  was  duly
signed by late Shri Shaikaji and the document had also been attested by  two
independent witnesses.  Unfortunately neither  Shaikaji  nor  the  attesting
witnesses were alive at the time when the said  document  was  exhibited  as
Ex.D7. The said document was believed by the lower Appellate  Court  and  on
the basis of the  evidence  which  had  been  adduced  in  addition  to  the
aforestated document, the first Appellate Court had  set  aside  the  decree
passed by the Trial Court and  held  that  the  property  had  been  divided
during the lifetime of late  Shaikaji and  therefore,  the  plaintiffs  were
not entitled to 7/8th share in the Suit  premises  which  consisted  of  CTS
No.883/A and CTS No.883/B.  According to  the  lower  Appellate  Court,  the
property had been duly divided and  was  in  occupation  of  the  respective
parties even during the lifetime of late Shaikaji.

7.    The said judgment  dated  1st  April,  2000  delivered  by  the  lower
Appellate Court in Regular Appeal No.75/1998 had been challenged before  the
High Court in Regular Second Appeal No.578/2000, which had been  allowed  by
the High Court and therefore, this appeal has been filed.   The  High  Court
did not agree with the view expressed by the lower  Appellate  Court  mainly
on the ground that Ex.D7 had not been registered as it ought  to  have  been
registered as it was compulsorily registerable.  The High Court was also  of
the view that Ex. D7 was not  produced  at  the  time  when  the  trial  was
conducted and the said document had not been relied upon  by  the  defendant
at the time of the trial though he was in possession of the  said  document.
Moreover, the High Court was of the view that there is no concept  of  joint
family in Muslims and therefore, there could not have been any partition  or
joint family property among the plaintiffs and the defendant, who belong  to
the family of Shaikaji.

8.    The learned counsel appearing for  the  appellant  i.e.  the  original
defendant submitted that the High Court committed an error  by  not  relying
upon the document Ex.D7 dated 12th August,  1958.   He  submitted  that  the
said document was executed by Shaikaji giving details  with  regard  to  his
family and giving a portion of his property bearing No.CTS 883  to  the  son
of his first wife and another portion of the property  to  the  children  of
his second wife.  Late Shaikaji had continued to stay with his  second  wife
and children of the second wife  in  the  property  which  was  subsequently
numbered as CTS 883/B.

9.    He also submitted that division of the property among the children  of
two wives was duly recorded in Ex.D7, which was executed  by  late  Shaikaji
and the said document, which was presented after 30  years,  was  admissible
as per the provisions of the Indian Evidence Act and there was no reason  to
disbelieve the said  document.   Moreover,  the  learned  counsel  drew  our
attention  to  certain  admitted  facts  pertaining  to  admission  by   the
plaintiffs with regard to  their  approaching  independent  persons  when  a
dispute had been raised with regard to  possession  of  the  Suit  property.
There was an evidence to  show  that  some   understanding  was  arrived  at
earlier among the family members, which was reflected in  Ex.D7,  which  was
duly acted upon and therefore, it was submitted by the learned counsel  that
there was no reason for the High Court to take a  different  view  than  the
one which was taken by the lower Appellate Court.

10.    On  the  other  hand,  the  learned   counsel   appearing   for   the
respondents/original plaintiffs submitted that the document  Ex.D7  had  not
been produced by the defendant at the time of the trial  though  he  was  in
possession thereof and there was no justifiable  reason  for  not  producing
the said document at the time of the trial.   Moreover,  he  submitted  that
the said document ought to  have  been  registered  but  since  it  was  not
registered, it ought not to have been relied upon  by  the  lower  Appellate
Court and the High Court was justified in ignoring the said document.

11.   No other submission was made by the learned counsel.

We have heard the learned counsel and have  perused  the  impugned  judgment
and the evidence recorded by the courts below.

12.   Upon perusal of the evidence, we  are  of  the  view  that  the  lower
Appellate Court was correct in its conclusion that late  Shaikaji  had  made
arrangements with regard to his property during his lifetime  and  the  said
arrangements had been subsequently recorded in Ex.D7, which  had  been  duly
acted upon by the revenue authorities by dividing  the  suit  property  into
two different parts namely, CTS No.883/A and CTS No.883/B.   It  is  not  in
dispute that the property which had been divided by  late  Shaikaji  was  in
occupation of the respective  parties  and  the  said  fact  has  also  been
recorded in the revenue record.

13.   It is true that there is no concept of joint family in Muslims but  it
was open to late Shri Shaikaji to give his property to  his  children  in  a
particular manner during his lifetime, which he rightly did, so as to  avoid
any dispute which could have arisen after his  death.   The  arrangement  so
made was duly accepted by the family members and it  was  also  acted  upon.
Only thereafter a formal record of the said fact was made by  late  Shaikaji
in Ex. D.7.

14.   In our opinion, genuineness of Ex.D7 was  rightly  not  questioned  by
the lower Appellate Court and  the  High  Court  was  not  correct  when  it
questioned its legality and validity, especially  when  the  plaintiffs  had
filed a suit after more than 25  years  of  the  aforestated  understanding,
which had taken place during or prior to 1958.

15.   For the reasons stated hereinabove and more particularly those  stated
by the lower Appellate  Court,  we  allow  the  appeal  and  set  aside  the
judgment delivered by the High Court so as to give effect  to  the  judgment
and decree passed by the lower Appellate Court.

16    Thus, the appeal stands disposed of as allowed with no  orders  as  to
costs.



                                                  …...…..……………............J.
                                            (ANIL R. DAVE)



                                        ...…..............................J.
                                             (ADARSH KUMAR GOEL)
New Delhi
June 29, 2016.


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.